Dear Sir/Madam Could you please ask Judge Harper to review her Judgment as attached. Yours Faithfully Douglas

1. Case No: 1401745/2012
EMPLOYMENT TRIBUNALS
Claimant: Mr D I Gardiner
Respondent: Exsto UK Ltd & Others
Heard at: Bristol On: 21st
February 2014
Before: Employment Judge Harper
Representation
Claimant: In person
Respondent: Mr Clowery — Consultant
JUDGMENT having been sent to the parties on 24th
February 2014 and written reasons
having been requested in accordance with Rule 62(3) of the Employment Tribunals
Rules of Procedure 2013, the following reasons are provided:
REASONS
1. This is the Claimant's application for a wasted costs order against the
Respondents' representative, Peninsula Business Services Ltd, in respect of the
withdrawal by the Respondent of its application for a preparation time order against
the Claimant.
AGREED
2. The Respondent's application for a preparation time order was listed to be heard on
Monday 10th
June 2013. On 5th
June 2013, the Respondents' representative
wrote by email to the Claimant and the Tribunal withdrawing its application
for a preparation time order against the Claimant and asking for the hearing to be
cancelled.
AGREED
3. The Claimant and the Respondents' representative were advised by return email
from the Tribunal that the hearing was cancelled upon the application being
withdrawn. That action prompted the Claimant to request reasons for the Respondent's
decision to withdraw its application.
AGREED

2. Case No: 1401745/2012
4. There is no obligation for a party to state its reasons for withdrawing its application
for a preparation time order, and none were provided. An explanation for the
withdrawal has been provided today, which I will deal with in due course in my
conclusions.-
DISAGREE: THERE MAY BE NO OBLIGATION TO GIVE WRITTEN REASONS AS
IS THE CASE WITH ANY COURT JUDGMNET OR DECISION.
HOWEVER NO REASONS AFTER REPEATED REQUESTS = UNREASONABLE &
NEGLIGENT (SHARP PRACTICE)
5. The withdrawal of the application for a preparation time order prompted the
Claimant to make an application for a wasted costs order against the
Respondents' representative, on the basis of him having spent
considerable time preparing for application, including providing information
AGREED
and correspondence in relation to his financial circumstances. He was
pleading inability to pay any award due to his financial circumstances.
6. An application for a wasted costs order is made pursuant to Rule 80 of the
Employment Tribunal's 2013 Rules of Procedure. Rule 80(1) provides:-
A Tribunal may make a wasted costs order against a representative in favour
of an party ("the receiving party") where that party has incurred costs—
(a) as a result of any improper, unreasonable or negligent act or
omission on the part of the representative; or
(b) which, in the light of any such act or omission occurring after
they were incurred, the Tribunal considers it unreasonable to expect the
receiving party to pay.
Costs so incurred are described as "wasted costs".
AGREED
7. The settled case law is setout in the case of Ridehalgh v Horsefield [1994] 3 All
ER 848. The Court of Appeal setout a three stage test that should be followed
when a wasted costs order is being considered. First, the court should
consider whether the representative acted improperly, unreasonably
or negligently. Secondly, if so, the next question is whether the
representative's conduct caused the Claimant to incur unnecessary costs?
Thirdly, if so, the court should ask whether it is just to ask the representative
to compensate the Claimant for the whole or part of the relevant costs. That
is the case law that binds me in determining the application today.
AGREE
8. Today I have heard representation from Mr Clowery, Consultant at
Peninsula. On behalf of Peninsula he contests the Claimant's application. He
contends that there is no act by Peninsula which amounts to negligent, improper
or unreasonable conduct, which engages the first stage of the test.
AGREE

3. Case No: 1401745/2012
9. The Claimant has attended today and wished to rely on his written
submissions of 1313th 19th , 1 26th
June and 14th
August 2013. Some of those
submissions contain matters irrelevant to the matter before me. I have
asked the Claimant what he considers to be the negligent, improper or
unreasonable conduct to be in relation to the late withdrawal of the
Respondent's application for a preparation time order. His position is that the
Respondent's representative should not have withdrawn the
application because the Claimant had prepared for the hearing on 10 th
June,
and that it should have gone ahead and that to withdraw it was an abuse of
process.
AGREED
10.Before setting out my findings in relation to the reason for the withdrawal of
the Respondent's application for a preparation time order, I will setout
the background to the original application.
11.In 2011, the Claimant presented a claim in the Bristol Employment
Tribunal against his former employer and three named individuals. His
complaints included unfair dismissal, disability discrimination and race
discrimination. He also brought money related claims. That case was heard
in September 2011 and dismissed.
12.The Claimant was dissatisfied with the outcome and appealed the
' judgment. The Claimant exhausted the appeal process and was not
successful.
AGREE –THE LEGAL TESTS ARE IMPOSSIBLE AND UNFAIR AND AN
INFRINGMENT OF HUMAN RIGHTS
13.In response to that lack of success, in September 2012 he brought four
claims in the Bristol Tribunal, and one in the Aberdeen Tribunal. All claims
were consolidated. Those claims were an attempt to re-litigate the 2011
case. He relied on the same facts and circumstances. I dismissed all 5 claims
by a judgment in January 2013, pursuant to Rule 18 of the Employment
Tribunal 2004 Rules on the grounds that the claims were res judicata, and
therefore he was stopped from pursuing the 2012 claims.
AGREE
I found that it was unreasonable and vexatious conduct to pursue those
claims.
DISAGREE THE CONDUCT OF THE CLAIMANT WAS NAIVE AND
OPTIMISTIC. NO MORE. THE JUDGE APPLIED THE RULES OF CAPABLE
LEGAL REPRESENTATIVES TO AN INCAPABLE PARTY
(Please refer to document “PREPARATION TIME ORDER AND WASTED COST
ORDER para’ 7-11)

4. Case No: 1401745/2012
14.The Claimant did not attend the hearing in January 2013. The Respondent at
the hearing, after I announced my judgment, made an application for a
preparation time order against the Claimant. I did not consider it at that stage
because no schedule of time spent had been prepared. I indicated that if the
Respondent wished to pursue its application, it should do so pursuant to the
then Rule 40(5) of the 2004 Rules with a schedule in support. The
Respondent made its application accordingly, and the listing of that application
was directed. The 10th
June 2013 allocated to hear the Respondent's
application.
AGREED
15.So far as the lead up to that date is concerned, these are the relevant
matters. There was correspondence between the parties in respect of the
Respondent's application for a preparation time order. In April and May 2013,
the Claimant submitted to the Respondent's representative and the Tribunal that
he was unable to pay any award. At one stage, namely on 18 th
April 2013 by
email, he offered to pay the Respondent £0.01 in respect of preparation time
incurred.
AGREED
16.Mr Clowery has explained today why the Respondent withdrew its
application for a preparation time order when it did. That explanation is as
follows. In late May, early June 2013, the Claimant provided copy
documents which indicated he was in receipt of disability benefit and that his
financial means were very limited. Mr Clowery advised his clients that in
those circumstances it was unlikely that the Respondent's application for a
preparation time order would succeed, and therefore it would be
appropriate to withdraw the application and thus save further time and costs
on the case.
AGREED
17.That strikes me as a pragmatic and sensible course of action.
AGREED WELL DONE!!!
When instructions were received from his clients to do so, he advised
the Claimant and the Tribunal immediately. I find nothing untoward in that
conduct. As I say, it was sensible and pragmatic, and ultimately would have
saved time and costs for the Respondent's application for a
preparation time order to be withdrawn. There was no need to give the
Claimant or the Tribunal reasons for withdrawing the application.
DISAGREE. THE CLAIMANT IN PREPARATION FOR THE COSTS
HEARING HAD CONDUCTED MANY HOURS OF RESEARCH IN
PREPARATION. WITHOUT THIS “WASTED TIME” THE HEARING WOULD
HAVE GONE AHEAD. THE REPRESENTATIVES KNEW THIS BUT ONCE
THEY WERE AWARE OF THE CLAIMANTS KNOWLEDGE AND RESEARCH
THEY ADVISED THEIR CLIENTS OF THE CORRECT COURSE OF ACTION.

5. Case No: 1401745/2012
18. I reject the Claimant's contention that, having made an application for a
preparation time order, the Respondent was bound to pursue it. His
criticism is unwarranted.
DISAGREE
He provided some proof of his financial situation, and the Respondent and
its representative reacted to that information appropriately and promptly.
DISAGREE THEY SHOULD HAVE PROVIDED REASONS PROMPTLY TO
THE CLAIMANT AS REQUESTED NOT 8 MONTHS LATER WHEN
PRESSED BY A JUDGE
It had the effect which the Claimant sought, namely the abandonment of the
application for a preparation time order. Indeed, the Claimant seemed to
acknowledge that, as in a document dated 6th
June 2013, which is entitled
'Call for a case review', he says:-
"Dear Sir/Madam,
I thank you for your letter cancelling the hearing for costs."
It offers a smattering of relief that the Respondents had conceded on this point.
DISAGREE. THEY SHOULD NOT HAVE PERSUED THE WASTED COST
APPLICATION IN THE FIRST PLACE. THEY KNEW OF THE CLAIMANTS
LIMITED RESOURSES SINCE HIS CONSTRUCTIVE DISSMISSAL IN 2010
THEY USED THE COSTS HEARING AS LEVERAGE ENCOURAGING THE
CLAIMANT ABONDON AN APPEAL TO THE EAT THAT WAS THREATENING
IMPROPER BEHAVIOUR THIS IS WHY IT WAS A RELIEF.
I find these to be the relevant facts.
DISAGREE THE JUDGE HAS NOT PAID DUE ATTENTION TO THE
DOCUMENT
“PREPARATION TIME ORDER AND WASTED COST ORDER”
GIVING NO ATTENTION TO THE FACTS AS PRESENTED
THIS IS UNFAIR.
19.Turning now to the questions that I must ask myself. The first question is
whether there was any conduct of the Respondent's representative that
amounted to unreasonable, negligent or improper conduct.
20.I refer to the facts that I have found. I have found that there was no
unreasonable, negligent or improper conduct by the Respondent's
representative in withdrawing the application for a preparation time order
when it did. The Respondent's representative acted sensibly and
pragmatically when it received documentary evidence in support of the
Claimant's contention that he was unable to pay any award due to his
financial circumstances. In those circumstances I conclude that the first
stage in the tests set out in the guidance in Ridehalgh v Horse field is not
fulfilled. There are therefore no grounds for making a wasted costs order
against the Respondent's representative, and I dismiss the Claimant's
application.
10.8 Reasons — rule 62(3)

6. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 1 of 9
Gardiner v Exsto UK & ORS
From the authority on wasted cost Ridehalgh v Horsefield & Anor [1994]
EWCA Civ 40 (appendix A)
“The three-stage test when a wasted cost order is contemplated:
(1) Has the legal representative of whom complaint is made acted
unreasonably?
(2) If so, did such conduct cause the applicant to incur unnecessary cost?
(3) If so, is it in all the circumstances just to order the legal representative to
compensate the applicant for the whole or any part of the relevant cost?
In order to assist the tribunal in the application for wasted and other cost it is
ascertained that the applicable rules of “The Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2013” and their application
are as follows.
1) Definitions - Rule 74
i) Case summary and the application of Rule 74
2) When a cost order or a preparation time order may or shall be made -
Rule 76
ii) Case summary and the application of rule 76
3) The amount of a preparation time order - rule 79 & 75
4) When a wasted cost order may be made - rule 80
iii) Case summary and the application of - rules 75, 79 & 80
5) Effect of a wasted cost order - rule 81
6) Procedure – rule 82
7) Clean hands
8) The Public interest
9) Pursuing a hopeless case
10) The acid test
11) Indisputable fact

7. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 2 of 9
1) Definitions
74(1) “Cost” means fees, charges, disbursements or expenses incurred by or on
behalf of the receiving party.
74(2) “Legally represented” means having the assistance of a person …who—
(a) has a right of audience …. of proceedings in ….Senior Courts of
England and Wales, or….. county or magistrates’ courts;
i) Case summary and the application of Rule 74
Gardiner “receiving party”
claimant
V
1) Exsto UK & Ors
2) Peninsula Business Services (representative)
(Outsourced suppliers of human resource and health
safety at work and legal services)
“paying party”
respondent
“The case” as listed
1. Case 1400500/2011
2. Case UKEATPA/1798/11/JOJ
3. Cases1401745, 1401756, 1401811, 1401812, 4109312/2012
4. Case A2 2012/2751
5. Case A2 2012/2752
6. Case UKEATPA/0386/13/LA
7. Compensation
Rule 74(1) “Cost” in “the case” is the expense or otherwise loss incurred by the
claimant.

8. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 3 of 9
2) When a cost order or a preparation time order may or shall be made
76(2) A Tribunal may make such an order where a party has been in breach of
any order or practice direction or where a hearing has been postponed or
adjourned on the application of a party.
ii) Case summary and the application of Rule 76
Rule 76(2) A Tribunal may make such an order where a party has been in
breach of any order or practice direction
The claimant refers the Tribunal to a letter dated 02/07/2013
Rule 76(2) Hearings have been postponed or adjourned on the application of
the respondent.
There are 3 recorded instances where hearings were adjourned or cancelled at
the wish of the respondent.
a) A pre-hearing review scheduled for the 6th
of December 2012
b) A pre-hearing review scheduled for the 21st
of December 2012
c) A hearing for cost scheduled for the 6th
of June 2013

9. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 4 of 9
3) The amount of a preparation time order
79(1) The Tribunal shall decide the number of hours in respect of which a
preparation time order should be made, on the basis of—
(a) information provided by the receiving party on time spent falling within rule
75(2); “A preparation time order is an order that “the paying party” make a
payment to “the receiving party” in respect of the receiving party’s preparation
time while not legally represented. “Preparation time” means time spent
working on the case”. and
(b) the Tribunal’s own assessment of what it considers to be a reasonable and
proportionate amount of time to spend on such preparatory work, with
reference to such matters as the complexity of the proceedings, the number of
witnesses and documentation required.
79(2) The hourly rate is £33 .....
79(3)The amount of a preparation time order shall be the product of the hours
assessed under paragraph (1) and the rate under paragraph (2).
4) When a wasted cost order may be made.
80(1) A Tribunal may make a wasted cost order against a representative in
favour of any party …… where that party has incurred cost—
(a) as a result of any unreasonable act or omission on the part of the
representative.
80(2) “Representative” means a party’s legal or other representative or any
employee of such representative.
80(3) A wasted cost order may be made in favour of a party whether or not
that party is legally represented….
Important note: In the drawing up of the procedures there is a conflict of reasoning, between
preparation time and wasted cost orders. Rules 74 – 78 are in essence the same as rules 80 –
82 save as reference to the parties paying or receiving (claimant, respondent and the
potential legal representatives of both sides) and with the exception, there is no method to
determine the amount of wasted cost (rule 80), for the purpose of expedition it is assumed
that rule 79 should be applied. The claimant reserves the right to appeal rules 74 – 84 .

10. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 5 of 9
iii) Case summary and the application of Rules 75, 79 & 80
It is requested that the Tribunal decide the sum of hours and the cost in
respect of which rule 79(1) preparation time and rule 80(1) wasted cost order
should be made, on the basis of—
Rule 79(1)(a) All information provided by the claimant within Rule 75(2) An
order is requested that respondent make a payment to the claimant in respect
of the claimant’s preparation time of the case. A submission has been made in
respect of part of the case as instructed by the Tribunal 19/06/2013. The
claimant is awaiting instruction in respect of correspondence dated from
19/06/2013 onwards.
And rule 79(1)(b) The Tribunal’s own assessment of what it considers to be a
reasonable and proportionate amount of time spent on such preparatory
work, with reference to the complexity of the proceedings and documentation
of the case.
Rule 80(1) An order is requested that the respondent make payment to the
claimant in respect of the case. Rule 80(1)(b) the Tribunal considers it
unreasonable to expect the claimant to pay the cost Rule 80(1)(a) resulting
from unreasonable acts and omissions on the part of the respondent. (breach
of a duty to the court).
Without going into great detail from the case files it is clear that by issuing or
pursuing proceedings for reasons unconnected with success in the litigation
and pursuing a case known to be dishonest, evading the rules intended to
safeguard the interests of justice, despite
Orchard v South Eastern Electricity Board [1987]… "it must never be forgotten
that it is not for solicitors or counsel to impose a pre-trial screen through which a
litigant must pass before he can put his complaint or defence before the court. No
solicitor or counsel should lend his assistance to a litigant if he is satisfied that the
initiation or further prosecution of a claim ….have become, an abuse of the
process of the court or unjustifiably oppressive."
And knowingly failing to make full disclosure on ex parte application and
knowingly conniving at incomplete disclosure of documents. The respondent
still pursued their case. Does the conduct permit of a reasonable explanation?

11. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 6 of 9
Rule 79(3) The amount of preparation time or wasted cost order shall be the
product of the number of hours assessed, rules 79(1) plus rule 80(1) and
current hourly rate of £33, rule 79(2).
A B
(A+B) x £33
79(2).
Case
Preparation
Time 79(1)
Wasted
cost 80(1)
Loss
79(3)
1 1400500/2011
2 UKEATPA/1798/11/JOJ
3 A2 2012/2751
4 A2 2012/2752
5 1401745/2012
6 1401756/2012 101.45
7 1401811/2012
8 1401812/2012
9 4109312/2012
10 UKEATPA/0386/13/LA
11 Compensation £25,000.00
TOTAL

12. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 7 of 9
5) Effect of a wasted cost order
81 A wasted cost order may order the representative to pay the whole or part
of any wasted cost of the receiving party. The amount to be paid, must in each
case be specified in the order.
6) Procedure
82 A wasted cost order may be made by the Tribunal on its own initiative or on
the application of any party. …….. No such order shall be made unless the
representative has had a reasonable opportunity to make representation ... in
response to the application or proposal. The Tribunal shall inform the
representative’s client in writing of any proceedings under this rule and of any
order made against the representative.

13. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 8 of 9
7) Clean Hands
It has been stated by the respondent that “the claimant does not make this
wasted cost application with clean hands”
The case Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40 is a good starting
point for the clean hands doctrine as an authority on the conduct of legal
representatives it outlines all of the applicable conduct required to keep a
clean pair of hands.
Despite judgments against the claimant founded upon the alleged
unreasonable conduct of the respondent. The claimant has not withdrawn
from the process as can be seen from rule 76(2) this would be unreasonable.
The claimant remains optimistic that at some stage the Tribunal will accept
that it made a mistake at the hearing 7-8th
September 2011. The immunity
afforded to legal representatives and judges should be extended to the
claimant
Immunity: Party’s should be free to conduct a case fearlessly, independently and
without looking over their shoulders; the need for finality, so that cases are not
endlessly re-litigated with the risk of inconsistent decisions; the duty of all to the
administration of justice; the general immunity accorded to those taking part in
proceedings; Only if a party’s conduct is unreasonable they are liable to a wasted
cost order any judge who is invited to make or contemplates making an order
arising out of a parties conduct of proceedings must make full allowance for the
fact that any party in an argument, often has to make decisions quickly or under
pressure, ignorant of the manoeuvring of their opposition. Mistakes will
inevitably be made, things done which the outcome shows to have been unwise.
It is only when, with all allowances made, a party’s conduct of proceedings is
quite plainly unjustifiable that it can be appropriate to make a wasted cost order.
The claimant admits to mistakes and making unwise moves but they were not
unjustifiable there is no mechanism to overturn an incorrect judgment.
Suffering from significant disability, anxiety and depression and with an
impaired equilibrium the claimant has soldiered on in the interests of justice
for all.

14. PREPARATION TIME ORDER AND WASTED COST ORDER
Page 9 of 9
8) The public interest
Clearly affirmed by Act of Parliament, is that party’s to litigation should not be
prejudiced by the unjustifiable conduct of lawyers.
9) Pursuing a hopeless case.
Party’s are not to be held to have acted unreasonably simply because they
pursue a claim or a defence which is doomed to fail.
10) The acid test
Whether the conduct permits of a reasonable explanation? If so, the course
adopted may be regarded as optimistic and as reflecting on the claimants
judgment, but it is not unreasonable.
The claimant claims that with intense scrutiny all of his submissions and
actions will pass the acid test of the courts. The claimant remains optimistic
that Justice will be done.
The criticism that was unjustly levelled at the claimant by the respondent and
endorsed by the tribunal has no basis other than the benefit of doubt. Until
over turned the claimant has to carry this burden.
11) Indisputable facts
a) The claimant under extraordinary circumstances made several
attempts to get a flight home.
b) The claimant did not know or have the number of Mr Baxevanidis, in
any event a message was received and accepted by him in good time.
c) The claimant returned to the UK and work as and when he said he
would.
d) 09/12/10 There was a confrontation – an accident which rendered the
claimant unfit for work.
e) What happened after these events was more unreasonable behaviour
of the respondent.
Yours Faithfully
Douglas Gardiner
14/08/2013